On Transgender Identity and “Good Faith Debate”

Nora J. Broker

Friday, March 01, 2019

These are interesting times to be transgender. Much of society seems to have only recently discovered that transgender people exist in three dimensions. At the federal level, transgender people saw significant advances under the Obama administration, only to watch the Trump administration furiously claw back just about every rule they could. The purpose behind these Trump rollbacks has occasionally been said out loud: that the Obama recognitions threatened to solidify public recognition of transgender people quickly, just as Obergefell shifted the gay marriage debate, and they had to act fast, while the cement was still wet, if they were to stem the tide.

This has created an interesting dynamic in the Oregon legal community in the discourse around transgender recognition. We appear to have a critical mass here of recognition and respect, yet we have in recent months seen attorneys speak out against transgender people in blunt and occasionally crude terms. It is clear that for some portion of our bar, transgender identity is still deemed “up for debate” in ways that other protected class identities are not. In addressing this dynamic, it seems relevant to discuss how deeply rooted trans protections truly are in Oregon law.

Unlike most federal law, recognition and protection for gender identity and transgender status is explicitly written into myriad Oregon statutes. Furthermore, these protections have been in place for more than a decade. LGBT identities protected under Oregon law are defined to include “an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual’s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual’s sex at birth.” (ORS 174.100(7)). This defined scope of protection is explicitly written into statutes governing education policy, public accommodations law, employment antidiscrimination law, housing anti-discrimination law, and other provisions. These statutes brook no distinction or lesser status between protection from gender identity discrimination and other statutorily defined characteristics such as race, color, religion, sex, age, or national origin.

Similarly, the regulatory canons of our own profession contain explicit gender identity protections. Oregon judges “shall not, in the performance of judicial duties, by work or conduct, manifest bias or prejudice, or engage in harassment, against parties, witnesses, lawyers, or other based on attributes including ... gender identity ... and shall not permit court staff, court officials, or other subject to the judge’s direction and control to do so.” (Oregon Code of Judicial Conduct Rule 3.3 B). Similarly, the ORPCs define professional misconduct to include “in the course of representing a client, knowingly intimidate or harass a person because of that person’s ... sex, gender identity, gender expression, [or] sexual orientation ....” (ORPC 8.4(a)(7)). These rules, at the very minimum, establish a baseline of respect for gender identity under Oregon law and in the Oregon legal community. Again, it is important to note that these rules brook no distinction between characteristics such as race, sex, or age and gender identity.

This black letter protection is of course wholly justified by even a cursory inquiry into the actual challenges facing the transgender community both historically and in the present day. The National Center for transgender Equality’s seminal 2015 US Transgender Survey found that nationwide, fully 29 percent of transgender people were living in poverty, and they suffered unemployment at three times the rate of the general population; 27 percent of respondents reported that they had either been denied a job, were fired, or were denied promotion on account of their trans status; 30 percent of respondents had experienced homelessness in their lifetimes, and 12 percent had experienced homelessness in the prior year alone on account of their transgender status. Fully 77 percent of transgender children out at some point during K-12 experienced mistreatment on account of their gender identity, and 24 percent were physically attacked on that basis. Nearly all of these statistics are compounded by other intersections of identity, particularly race, with Black, Native, and Latinx trans women experiencing the greatest impacts.

The report also found that supportive family and community directly impacted the dire statistics, with those who had unsupportive families being significantly more likely to experience homelessness, serious psychological distress, or suicidality. To be blunt, the data showed what many of us in the community already knew: external hostility and a lack of supportive community costs trans lives.

In Oregon, we are fortunate enough to have a government that takes these concerns seriously. In the current session, the Oregon legislature is considering SB 52, known as Adi’s Act, which requires effective suicide prevention policies in schools and provides resources to effectively combat teen suicide. The law is named for Adi Staub, a transgender girl in Oregon who became a victim of suicide after experiencing anti-trans hostility in school. While written (appropriately) to apply equally to all students, the bill is specially driven by the benefits it will bring for LGBT students, who are at much higher risk than the general population. Enacting SB 52 will help maintain Oregon’s place as a leader in LGBT inclusion and protection.

The above statistics and the experiences they reflect are part of the true record on which any rational gender identity policies - and any reasoned discourse around those policies - must necessarily be based. So too, the contemporary conclusions of the reputable medical establishment, which has made great strides to recognize and affirm the legitimacy and dignity of the trans experience. But above all, this record must pay regard to actual trans experience. Trans people know themselves, and any “debate” that does not give full hearing and consideration to their experiences is no debate at all.

A particular dynamic we are seeing repeatedly in the current federal claw-backs shows the imbalance in the “up for debate” perspective. Many of the trans-inclusive Obama era policies were the result of years of work, painstaking preparation, and thorough analysis. For example, the inclusive military policy was based on serious study, including a study by the Rand Corporation which delved deeply into all available evidence, from leading medical opinion to thorough effectiveness studies to the demonstrated examples of integrated armed forces overseas. In short, they crossed every “t” and dotted every “i.” Then, via tweet, Trump threw that all in the trash. To put together its “new” analysis to justify that reversal post-hoc, the new administration invited in leaders from actual anti- LGBT hate groups, and promptly put out a report regurgitating all the standard canards of that movement, ignoring the bulk of evidence or expert opinion. Many of those canards were expressly refuted by the prior evidencebased analysis. As attorneys, the parsing of fact from opinion and the weighing of evidence are our specialties. It is incumbent upon us to do our homework, apply our critical reasoning, and recognize when a “good faith debate” is anything but.

Ultimately, as attorneys, we are all guardians of our legal profession, tasked with maintaining its integrity in the public eye and fostering public confi dence in our legal system. We are all of course entitled to our own opinions. The principle of free speech is a core and precious freedom, and further, an attorney’s role in giving voice to their clients may require the promotion of unpopular messages. Those caveats notwithstanding, it is nonetheless incumbent upon all of us to recognize the harm that is caused to our institutional integrity when members of our bar attack, belittle or demean marginalized communities.

Above all, it is critical for us to mind how our statements and public positions may impact the very communities we seek to serve. Judges certainly value this principle immensely. Prosecutors must be cognizant of the ways their statements affect their ability to serve their communities. This burden falls, too, on other public interest and civil rights practitioners who directly serve and represent clients in need. Whether you represent injured construction workers, union teachers, or veterans in a public defense context, it is critical to recognize how open degradation of some of the most vulnerable segments of the populations we serve compromises our ability to truly fulfill our roles in practice.

This is all to say that when we say we serve a community, we must serve all of that community, or we are failing in our mission.

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